Thursday, February 4, 2010

Elvis Has Left The Building

How to Protect Your Company from the Legal Hazards of Social Media Abuse

I am often asked the question by clients, counsel and Human Resource professionals, “Do I think their company should ban employees from using social media while at work?” Often those concerned will complain that their employees spend too much time on Facebook rather than work. Or that they can’t make their employees “think” before they “tweet” something (in 140 characters or less) that another employee finds offensive. Or, they heard a rumor that there is an anonymous company blog that badmouths the bosses. These are valid concerns for employers and those who must manage employee’s behaviors and productivity. According to recent studies, the average worker admits to spending more than 2 hours per 8 hour workday on the internet. Employees surfing the internet, including social networking sites and blogs, account for nearly 45% of that wasted time.

Yet despite the drawbacks, social media sites (such as Facebook, Linkedin, Twitter and Myspace) have many business benefits. Social media sites can help employees augment their computer skills, hone communication skills, connect them with colleagues and mentors, and can be used to promote the values, goals and marketing interests of their employer. The challenge for a company now is to allow for the innovation of technology, including access to social media, while protecting itself and its employees from abuses. Therefore, my response to the question of whether a company should ban employees from using social media at work is always, “Elvis has left the building.” The social media train is moving too fast now for employers to stop it. According to Andrew S. Grove, chairman of Intel, “There are two companies – one that operates (with technology) and one that doesn’t…you’re either going to do it or you disappear.” In other words, social media is here to stay. Banning it is no longer an innovative, competitive, forward-thinking company’s best option.

Employers must accept the inevitability of social media’s presence in the workplace as much as they have accepted email, the fax machine and the intranet. Rather the best practice now for employers is to proactively plan for their employee’s abuse of social media and implement an iron clad policy which protects the employer from liability in the event of social media abuse. Certainly, there are no one-size-fits all policies that I can draft that would satisfy the needs of each and every company. Industry, company size, social media use and many other factors must be taken into consideration when designing these innovative policies. Fortunately, the internet is riddled with example social media policies. In case you do not believe me, here are 200 Sample Social Media Policies. I do not recommend or endorse any of these.

Nevertheless, in drafting or evaluating a social media policy make sure you include the following provisions that will deter employees from abusing social media and will allow your company cause for discipline or termination in the event that an employee does not comply with it:

1) State that an employee is permitted to access social media sites while at work as long as the use does not interfere with the optimum performance of their job. The company’s primary interest is in its employee’s productivity and the use of social media at the cost of this productivity undermines the Company’s business objectives.

2) State that the Company’s internet and email policies apply to employee’s accessing social media sites from company computers. That is, the company owns the computers and technology and can and does monitor this usage. Employees should not have an expectation of privacy while using social media.

3) State that the Company’s discrimination and harassment policies apply to employee’s accessing social media sites. Employees should be considerate of visual content displayed on their computer screens. Moreover, accessing sites that are pornographic, violent or have sexual or discriminatory content is prohibited. Finally, writing harassing, bullying or discriminatory statements about coworkers or management may also violate the harassment policy and is prohibited.

4) State that the Company has an expectation of loyalty from its employees that the employee will not make statements on behalf of the company or use the Company logo without express, written permission. Moreover, the Company expects that employees will not disparage or defame the company, its employees or its products on any social media site. The Company does not want its employees to respond to negative comments about the company, its employees or products without express, written consent.

5) State that the Company expects employees to act with high ethical standards when accessing social media websites. An employee must never represent him or herself or the Company in a false or misleading way. All statements must be true and not misleading. All claims must be substantiated. Finally, using social media for unlawful purposes is prohibited.

6) State that the Company’s trade secret and confidential communications policies apply to employee’s accessing social media sites. The Company expects that employees will not share company secrets, confidential information or discuss company litigation on social media sites. In the event that an employee inadvertently reveals such information, he or she should inform management immediately.

7) State that an employee who violates this Social Media Policy may be subject to discipline up to and including termination.

As important as the policy is to a company in protecting against abuse, so is its enforcement. Training management and staff is integral to Katz Consulting & Associates Proactive Lawsuit Prevention Strategies. Do not bury the policy in your handbooks. Train employees on the content of the policy. Train your management to treat employees consistently in the event that they determine employees are abusing social media. Inconsistent discipline may give rise to a claim of discrimination.

Finally, remind managers not to make promises or assurances that could amend the Company’s written policy. Once case, presently before the California Supreme Court, Quon v. Arch Wireless Operating Co, involves a sergeant on the Ontario, California SWAT team who sued his employer for violating his right to privacy because it monitored his sexual-text messaging (or “sexting”) from his department issued pager. Even though the department had a policy that expressly informed employees of its right to monitor their pagers, the sergeant’s supervisor promised him he would not monitor it. Appropriately training supervisory staff on the pitfalls of making these verbal assurances would have prevented this lawsuit.

Did I miss something? Is your policy consistent with my recommendations or do you have something to add? I’d love to hear your opinion.